Latest Terms & Conditions version (V2.00) :2014-04-17 10:45:54
By joining our membership scheme, you (hereafter referred to as the "Member") sign an agreement binding you to the company Dagency (hereafter referred to as the "Company"), the purpose of which is to ensure the promotion of the Services, in particular through Advertising Campaigns, and in return for Remuneration.
Our contractual agreements are made up of i) these General Terms ii) where appropriate, the Membership Scheme Rules ii) the Special Terms regarding the Member’s Remuneration, all of which are referred to together as the "Agreement".
In the case of contradiction between the provisions of the General Terms, the Membership Scheme Rules and the Special Terms, the contractual provisions of the higher rank will prevail over those of the lower rank, in the following order: i) General Terms ii) Membership Scheme Rules iii) Special Terms.
By clicking on "I accept", the Member declares, acknowledges and warrants i) to have read and accepted the Agreement without restriction or reservation ii) to confirm the veracity and comprehensiveness of the information provided by the Member, in particular regarding the latter’s identity.
The following terms used in the singular or plural form in these General Terms will have the following meaning:
1.1 Member the co-contracting party of this Agreement, whether a private individual of age (having become an adult in accordance with the national law applicable in his/her place of residency and/or place in which the Agreement is performed) or a legal entity, with full legal capacity to sign the Agreement and with the capacity of Internet professional
1.2 Pass for Press (PFP) validation granted by the Company to the Member for any Freestyle Advertising Campaign
1.3 Broker: refers to the Member duly approved beforehand by the Company as leader of a Members’ Network under the Member’s responsibility and in the latter’s name
1.4 Advertising Campaigns: refer to the advertisements designed exclusively for promoting the Services performed according to the Content of the Company and, where appropriate, the Content of the Members, including a Tracking that the Member broadcasts, under its responsibility, on various formats, in particular on the Website(s)
1.5 Freestyle Advertising Campaigns: refer to an advertisement designed by the Member to exclusively promote the Services and which i) is not from the Content of the Company ii) constitutes an adaptation of the Content of the Company iii) constitutes a format with a view to being sent by emailing. The Freestyle Advertising Campaigns are only authorised to be used by the Member with a PFP
1.6 Customer: refers to any private individual of age, or any private legal entity, performing a Registration and/or Payment of Services.
1.7 General Terms (GT): refers to this document
1.8 Special Terms (ST): refers to the sections and information placed in the Member’s Zone, in particular the "my repayments" section particularly regarding i) the conditions of Remuneration of the Member ii) the special rules of the membership scheme, in particular the conditions of broadcasting the Advertising Campaigns iii) the Payment Threshold, etc.
1.9 Agreement: refers to these GT, the Membership Scheme Rules and the ST
1.10 Content of the Members: refers to the various content, information and data of the Member, whether protected or not by an intellectual property right i) provided to the Company for the Personalisation ii) present on the Website including the domain name and URL address
1.11 Content of the Publishers: refers to the various content regarding the Services run by the Publishers, in particular on their Website(s), whether protected or not by an intellectual property right, with the exclusion of the Content of the Company
1.12 Content of the Company: refers to the webpage models, buttons, banners, etc., and more generally the promotion media of the Services, whether protected or not by an intellectual property right, resulting from the Content of the Publishers, and which are provided on the Membership Platform via the Member’s Zone and which may, where appropriate, be Personalised, with a view to the Member broadcasting Advertising Campaigns.
1.13 Cost per Lead (CPL): refers to the Member’s Remuneration calculated on the basis of the number of Registrations according to the conditions and criteria defined in the ST
1.14 Member’s Zone: refers to the zone devoted to the Member on the Membership Platform accessible on line with Identifiers. The Member’s Zone enables the Member in particular to select the Content of the Company, create Advertising Campaigns, consult Statistics, trigger the payment of the Remuneration, etc.
1.15 Publishers: refer to the various publishers of the Websites of the Publishers and Services
1.16 Identifiers: refer to the username and password attributed exclusively to the Member enabling the latter to have access to the Membership Platform
1.17 Registration: refers to the access by the Customer from the Advertising Campaign in particular through a hypertext link to a registration page for the Services, then the supply by the Customer to the Publishers of all of the information required for the registration for one or several Services and the correlative confirmation of the registration by the Publishers
1.18 Information: refers to the information, documents, data, etc., other than the Content of the Company, in particular from the Membership Platform and more generally all elements provided by the Company to the Member for performing the Agreement
1.19 One Shot: refers to the Registration followed by one (1) Payment and giving rise to a commission in favour of the Member on the basis of this Payment alone, the amount of which is defined in the Special Terms, with the exclusion of any later commission
1.20 Sponsored Link: refers to the Referencing of the Website by an advertising (or commercial) hypertext link directing visitors to the Member’s Website or the Website of the Publisher displayed on one of the Search Engines
1.21 Trademark: refers to the distinguishing feature(s) (trademark, corporate name, trade name, brand name, domain name, logo, etc.) of the i) Publishers, in particular under which they market the Services ii) of the Company iii) of third parties
1.22 Keyword(s): refers to the keyword(s) defined and reserved by the Member with the Search Engine(s) and enabling the Referencing of the Website in the Search Engine(s) via Sponsored Link
1.23 Search Engine: refers to the program which indexes the content of various Internet resources, and more particularly of the Websites, enabling the internet surfer using a Web browser to seek information according to various parameters, by using in particular keywords or search requests
1.24 Statistical Tools: software tools of the Company or third parties used on the Membership Platform for calculating i) traffic of Customers and/or ii) Registrations and/or iii) Payments
1.25 Payment: refers to the actual, full and final payment(s), with the exclusion of payment waivers or cancellations, made by the Customer to the Publishers in order to benefit from the Services
1.26 Party or Parties: refers to the Member and/or the Company
1.27 Membership Platform: refers to the technical platforms of the Company accessible in particular from the following URL address www.camspower.com, www.dating-affiliation.com, www.xcams-partners.com and www.the-adult-company.com enabling to have access to the Member’s Zone
1.28 Personalisation: refers to the personalisation process by the Member in the Member’s Zone of the Content of the Company by the supply of the Content of the Member
1.29 Portal: refers to a Website specialised in a particular sector or not, providing a multitude of entries by hypertext links to third-party Websites and/or Search Engines
1.30 Referencing: refers to a series of techniques enabling to index, in natural referencing, a Website in the Search Engines or even in search directories in order to optimise, develop and improve the visibility and positioning of the Website
1.31 Fee-paying Referencing: refers to a fee-paying method of referencing Websites by Sponsored Link (e.g. Google’s AdWords service) which enables to index a Website in the Search Engines, generally following the reservation of a Keyword and an auction system
1.32 Members’ Network: refers to the network of members with whom the Broker has i) contractual agreements for broadcasting on the online media published by the said members ii) signed contractual terms at least equivalent to the Agreement
1.33 Broad Request: refers to a display technique by the Search Engines of the Member’s Sponsored Link following the reservation of a Keyword due alternately or cumulatively in particular to i) the presence of the search request input by the internet surfer of several keywords, including the Keyword ii) the supposed synonymy by the Search Engine between the search request input by the internet surfer on the said Search Engine and the Keyword
1.34 Remuneration: refers to the Tax-Exclusive remuneration owed by the Company to the Member in return for broadcasting Advertising Campaigns and the correlative Registration and/or Payment of Customers. The remuneration is established according to the type of repayment chosen: number of Registrations and/or of One-shots and/or Revenue Share
1.35 Revenue Share: refers to the Remuneration in return for broadcasting Advertising Campaigns and the correlative i) Registration ii) successive Payment(s) by Customers, and giving rise to a repayment commission for each Payment, defined in the Special Terms
1.36 Statistics: statistics from the Statistical Tools concerning the Member’s Advertising Campaigns
1.37 Payment Threshold: payment threshold indicated in the ST, "my repayments" section, as from which the Company pays the Remuneration to the Member. The payment threshold is currently €100
1.38 Services: refers to the products and services marketed on line by the Publishers
1.39 Website: refers to the online media, such as website, blog, Portal, etc. published by the Member under the latter’s responsibility and in the latter’s name and whose URL address(es) have been registered in the Member’s Zone
1.40 Website of the Publishers: refers to the Website(s) of the Publishers whose URL address(es) is/are indicated on the Membership Platform
1.41 Tracking: refers to the technical identifier provided to the Member which should, in all events, be included in the Advertising Campaigns in order to identify the Customers as coming from the Member and entitle the latter, where appropriate, to Remuneration.
1.42 Territories: refers to the territories to which the Member may broadcast the Advertising Campaigns as indicated in the ST, with the exclusion of the Prohibited Areas
1.43 Prohibited Areas: refers to the territories to which the Member is prohibited from broadcasting the Advertising Campaigns, either directly or indirectly, i.e.: i) Algeria, Afghanistan, Saudi Arabia, United Arab Emirates, North Korea, Egypt, Iran, Iraq, Japan, Jordan, Kuwait, Libya, Morocco, Pakistan, Qatar, Republic of China, Singapore, Syria ii) and more generally, to any other geographical location corresponding to a political entity or other part whatsoever of the said place in which the access and/or viewing and/or downloading and/or broadcasting and/or any other use of the Services would constitute an infringement of any law or regulation applicable.
2.1 This Agreement is signed for an unlimited term as from its acceptance by the Member, until i) the termination by either Party ii) and/or for as long as Remuneration is owed to the Member.
2.2 The Member is informed that the GT, Membership Scheme Rules and the ST may be amended, at any time, without prior notification being sent to the Member. The Member is informed that the ST are generally amended every three (3) months. The Member is therefore responsible from visiting the Member’s Zone regularly and consulting any amendments to the Agreement. The Member acknowledges that any broadcasting of Advertising Campaigns by the latter, on any format whatsoever, and in particular on the Website, implies acceptance of the Agreement, even amended.
2.3 Unless otherwise agreed by the Parties, the Agreement is signed on a non-exclusive basis.
3.1 Content of the Company:
3.1.1 The Company undertakes to provide the Member with the Content of the Company via the Member’s Zone of the Membership Platform and to enable the Personalisation of it. The Company endeavours to renew or replace the Content of the Company without being required to respect any regularity whatsoever in this respect.
3.1.2 The Company authorises the Member to broadcast the Advertising Campaigns on any format, in particular the Website, except for any restrictions indicated in the Special Terms, for broadcasting in and/or for the Territories.
3.2 Membership Platform – Member’s Zone – Statistics:
3.2.1 The Company endeavours to enable the Member to access the Membership Platform and/or Member’s Zone, 24 hours a day and 7 days a week, via the Member’s Internet telecommunications network, except in the case of interrupted service for maintenance operations that may lead to cuts in access, without the Member being entitled to claim any indemnity whatsoever.
3.2.2 The Company endeavours to implement Statistical Tools and enable the Member to have access to the Statistics via the Member’s Zone.
3.3 Payment of the Remuneration:
The Company undertakes to pay the Remuneration to the Member as from the Payment Threshold and within the periods indicated in article 7.
The Company undertakes to provide the Member with an assistance service via the Member’s Zone.
4.1 Member’s Information – Username – Access to the Member’s Zone:
4.1.1 The Member declares and acknowledges that the information provided by the latter in the Member’s Zone, in particular regarding identity, address details, bank details, Website, etc., are essential and decisive elements for the Company performing the terms of the Agreement. The Member undertakes to keep the Company loyally and promptly informed of any amendment to such information by regularly updating it in the Member’s Zone.
4.1.2 The Member is responsible for keeping and using the Identifiers. All access to the Member’s Zone with the Identifiers is automatically deemed to have been performed by the Member. In the case of theft of the Identifiers, the Member undertakes to inform the Company of the same, immediately.
4.1.3 The Member acknowledges that the performance of the Agreement requires regular connection to the Member’s Zone.
4.2 Advertising Campaigns - Website:
4.2.1 The Member creates, then broadcasts the Advertising Campaigns and/or Freestyle Advertising Campaigns, at the latter’s cost and under the latter’s exclusive responsibility. The Member undertakes to put the Freestyle Advertising Campaigns to the Company, before any use, in order to obtain a PFP. It is specified that the PFP will not constitute in any way whatsoever a validation by the Company of the legality, accuracy, validity, compliance, etc. of the Freestyle Advertising Campaigns.
4.2.2 As essential, decisive and concurrent conditions without which the Company would not have signed the Agreement, the Member represents and warrants to the Company that:
126.96.36.199 the Website, Content of the Member, and broadcasting media that the Member will have selected for the Advertising Campaigns must not and should not, at any time, infringe any law, order or regulation or promote illegal activities, and in particular without limitation:
- present or promote content that may breach law and order, human dignity or public decency, in particular obscene content
- contain or promote child pornography and/or any content describing or showing underage children, or suggesting that they are underage and/or infringing children’s rights
- promote any discrimination based in particular on race, sex, religion, nationality, handicap, sexual orientation or age
- have defamatory, abusive, hateful, threatening or insulting content or praise crimes and/or offences, in particular against humanity, or that may constitute harassment or committing crimes or offences
- infringe third-party rights, in particular intellectual property rights (such as in particular copyright, distinguishing signs – trademark, corporate name, brand name, trade name, logo, domain name, including the Trademarks -, patents, trade secret, knowhow, etc.), the Content of the Publishers, or publicity rights, right to privacy, right of personal portrayal, etc.
- send messages, on any format and by any means whatsoever, in particular by email, i) to people who have not requested or agreed to receive this type of message (SPAM) and/or ii) containing any program, file, data flow or other content such as in particular viruses, computer worms, "Trojan horses" or any other equivalent computing application.
188.8.131.52 the Member has full and complete legal capacity to sign and perform the terms of this Agreement
184.108.40.206 the Member has all of the authorisations, declarations, licences, etc. required for performing its activities, whether for publishing its Website or for performing the terms of the Agreement
220.127.116.11 the Member is up to date with all of its administrative, social, tax and customs obligations, including its declarations.
5.1 The Company grants the Member the right to reproduce and show the Content of the Company, with the exclusion of any other rights, in particular adaptation, correction, translation, distribution rights, etc., in as many copies as the Member shall deem necessary, exclusively i) in the Advertising Campaigns and/or the Freestyle Advertising Campaigns ii) for promoting the Services iii) for using the Website, and for any digital medium on the Internet, with the exclusion of any other medium iv) for the Territories. These rights are granted on a non-exclusive basis and are not transferable. They are granted for the term of the Agreement, except in the case of a shorter term indicated in the Member’s Zone.
5.2 The Member declares and acknowledges that the Agreement does not lead to any transfer of intellectual property rights to it on the Content of the Company, the Content of the Publishers, or the Trademarks. The Member transfers to the Company all intellectual property rights that the Member may acquire, where necessary, on an exclusive basis, free of charge, for the territory of the whole world, as and when they are acquired, in particular in the case of adaptation, amendment, translation, etc. of the Content of the Company, Content of the Publishers, Trademarks, in particular as part of the Freestyle Advertising Campaigns.
5.3 The Member grants the Company with the right to integrate, amend, correct, adapt the Content of the Member to include it with the Content of the Company, in as many copies as the Company shall deem necessary, exclusively i) on the Membership Platform ii) to generate Advertising Campaigns ii) to promote Services iii) for use on the Website, and for any digital medium on the Internet, with the exclusion of any other medium iv) for the Territories. These rights are granted on a non-exclusive basis and are not transferable. They are granted for the term of the Agreement.
5.4 Each Party warrants that it holds all of the rights required for granting the rights indicated above.
5.5 The Member is forbidden from filing, registering or reserving the Trademarks, Content of the Company and Content of the Publishers anywhere in the world.
5.6 The Member is forbidden from i) reserving the Trademarks as a Keyword, ii) allowing or authorising the display of a Sponsored Link following a search request including the Trademarks, either identically or similarly, alone or with another word, including due to the Broad Request, and in particular from putting the Trademarks in negative keywords with the Search Engines iii) displaying the Trademarks in a Sponsored Link, iv) creating a fictitious sponsorship account for the Member as part of a sponsorship Advertising Campaign, with a view in particular to obtaining a Registration.
6.1 The Member acknowledges that the Remuneration depends on several factors, such as the efficiency of the Advertising Campaigns, the Freestyle Advertising Campaigns, the highlighting of them on the Website in particular, the Member’s capacity to generate natural or fee-paying traffic, etc. and that the level of Remuneration depends, mainly, on the Member and not on the Company. The Member may not hold the Company, or the Publishers, and/or any third party on which they depend, liable for any absence of or low Remuneration, in particular in light of the costs incurred by the Member for performing the terms of the Agreement.
6.2 The Member declares and acknowledges that the Content of the Company is supplied in its current state, without any other guarantee, unless otherwise stipulated in the GT. The Company does not check or supervise the content of the Website and may not be held liable for the said content.
6.3 Each Party shall pay compensation to the other Party for the damages that it causes to such Party. The Parties specifically agree that any consequential damages, such as loss of computer data, loss of brand image, turnover, margin, etc., shall not give rise to compensation.
6.4 Notwithstanding the terms of article 6.3, in the case of infringement by the Member of its obligations in relation to article 4.2.2, the latter shall be required to pay compensation for all of the damages and prejudices, even indirect, caused to the Company.
6.5 As an essential and decisive condition for the Company without which it would not have signed this Agreement, its liability in relation to the Agreement is limited, for all causes and prejudices together, to the amounts paid by the Company to the Member during the twelve (12) months of the deed causing the damage.
7.1 The Member will receive Remuneration depending, where appropriate, on the number of Registrations or Payments indicated in the Statistics. The Remuneration according to the number of Payments is established either as One Shot, or Revenue Share. The amounts, percentages and terms are indicated in the ST. Payment cancellations or waivers shall be deducted from the Remuneration for the Revenue Share.
7.2 In order to take market evolution into consideration, the Member is informed that these elements are amended every three (3) months on average and are applicable to all of the Advertising Campaigns and/or Freestyle Advertising Campaigns, including those implemented prior to the amendment of the ST. The Member is therefore responsible for checking the amendments to the ST regularly, and amending or stopping, where appropriate, the Advertising Campaigns and/or Freestyle Advertising Campaigns.
7.3 Should the Statistics regarding the Member for calculating the Remuneration be significantly higher than those noted by the Company for identical or similar Advertising Campaigns and/or Freestyle Advertising Campaigns of other Members, whether in numbers of Registrations and/or location of Customer, the rate of Payment in relation to the number of Registrations, a higher number of Payment cancellations, etc., the Member acknowledges that the Advertising Campaign and/or Freestyle Advertising Campaign is automatically deemed as fraudulent, authorising the company to freeze the Remuneration. In this case, the Parties shall meet in order to negotiate the Remuneration due to the Member, honestly. In the case of disagreement between the Parties, the latter specifically agree that the Remuneration owed to the Member shall be calculated on the basis of the average amount noted by the Company for identical or similar Advertising Campaigns and/or Freestyle Advertising Campaigns of other Members.
7.4 Subject to the terms of article 7.3 and the Payment Threshold, the Member may trigger the payment of the Remuneration in the Member’s Zone. The Remuneration will be paid subject to the Member issuing a corresponding invoice in the Member’s Zone. The Remuneration will be paid to the Member’s bank account indicated in the Member’s Zone, on the 20th of each calendar month.
8.1 Each Party may terminate this Agreement at any time, with or without grounds, subject to sending prior notification to the other Party.
8.2 Each Party may terminate this Agreement after formal notice remaining unanswered after a period of eight (8) clear days.
8.3 In the case of infringement by the Member of one of the terms of the Agreement, in particular of the essential obligations in article 4.2.2, the Company may suspend the said Agreement, at any time, including without prior notice, along with the Member’s account and any Remuneration owed. The Member may not claim any compensation in this respect.
8.4 The suspension and/or termination of the Agreement, for any reason whatsoever, shall entail the following consequences:
- freeze of Remuneration
- during the notice period, the relations between the Parties must continue loyally, honestly and normally
- at the end of the agreement, the Member shall stop using the Advertising Campaigns and/or Freestyle Advertising Campaigns, and in any event the Content of the Company
- the Remuneration will only be paid to the Member after a period of one hundred and twenty (120) days following the termination of the Agreement.
9.1 Each Party acts as an independent economic operator and at its own risk.
9.2 The Agreement does not create or constitute any alliance, joint-venture, merger, representation or partnership of any kind whatsoever, between the Member and the Company, its employees, representatives or assignees.
10.1 The correspondence exchanged between the Parties will be ensured mainly by email and via the Member’s Zone.
10.2 The Parties declare that the information sent by email, via the Member’s Zone and more generally via the Membership Platform shall be taken as evidence between the Parties. Elements such as the time of receipt or issue, and the quality of the data received shall be taken as evidence as a priority as shown on the Company’s IT system, unless the Customer provides written proof to the contrary. The scope of the proof of the information provided by the Company’s IT systems is that granted to an original document written on paper, signed by hand.
10.3 The files of the Company are taken as evidence for defining all Statistics, including in particular the number of Registrations, Payments, Payment cancellations, Fee-paying Leads or Revenue Share. Any contradiction or error should be made known to the Company within a maximum period of one (1) month of recording the information in question, subject to debarment for the Member.
11.1 The rights and obligations of this Agreement may not be transferred or assigned, in whole or in part, by the Member.
11.2 The Member is also forbidden from subcontracting all or part of the rights and obligations of this Agreement.
Unless previously authorised in writing by the Company, the Member is forbidden from having a network of members which it enables to benefit from all or part of the Agreement. For this, the Member must contact the Company, and obtain its approval in order to become a Super Member enabling the latter to let its Members’ Network benefit, under the Member’s responsibility and in the latter’s name, from the Agreement. In this case, the Company is the only co-contracting party of the Super Member, with the exclusion of the Members’ Network. The Super Member is responsible for having the Members’ Network accept terms that are at least equivalent to those of the Agreement and for leading such Members’ Network. The Super Member protects and holds the Company harmless in the case of any action, claim, dispute and more generally any conditions of performance by the Super Member of the contractual relations with the Members’ Network.
The Parties undertake together to respect a confidentiality obligation in relation to performing this Agreement. The confidentiality obligation shall continue beyond the end of the Agreement, for any reason whatsoever, for a period of one (1) year.
14.1 Neither Party shall be held liable for any delays or impossibilities in meeting with their contractual obligations due to one or several force majeure events that are beyond their control and intentions, such as: social unrest, intervention of civil or military authorities, natural disasters, fire, water damage, poor functioning or interruption of the telecommunications network or electricity network.
14.2 In the case of a force majeure event, the Party involved should notify the other Party in writing of the same and do its best to find a solution or attempt to limit its consequences with a view to resuming its contractual obligations as soon as possible. If the force majeure event should last for a period of thirty (30) days, each Party shall be authorised to terminate this Agreement, ipso jure.
15.1 The Member is forbidden, unless agreed beforehand in writing by the Company, from making direct or indirect job offers to a staff member of the Company. This undertaking remains valid for a period of two (2) years following the end of the Agreement.
15.2 Failure to respect this undertaking, without prejudice to any damages that may be awarded by a court with jurisdiction and that may be claimed by the Company, will entail the payment by the Member to the Company of an amount equivalent to twelve (12) months of the last wage received by the poached employee.
16.1 The Member specifically authorises the Company to use and reproduce its corporate name, trade name, domain names, trademarks and/or logo as a commercial reference on any medium of the Company’s choice.
16.2 This authorisation applies for the term of this Agreement and for 6 months as from its end for any reason whatsoever.
This Agreement constitutes the whole agreement existing between the Member and the Company, and replaces and cancels any other previous agreement, discussion or declaration, whether written or verbal.
If one of the terms of this Agreement is deemed as null and void or unenforceable in any way whatsoever, the said term shall be withdrawn so that the other remaining terms continue to be binding. Unless otherwise indicated, the other terms of this Agreement shall continue to have full effect after withdrawal of the term deemed as null and void.
THESE GENERAL TERMS ARE SUBJECT TO SWISS LAW.
ANY DISPUTE REGARDING THE INTERPRETATION, PERFORMANCE, CONSEQUENCES AND APPLICATION OF THIS AGREEMENT, SHALL BE REFERRED TO THE COURTS WITH JURISDICTION WITHIN THE COMPETENCE OF GENEVA (SWITZERLAND), INCLUDING FOR INTERIM OR EX PARTE PROCEEDINGS, NOTWITHSTANDING SEVERAL DEFENDANTS AND/OR THE INTRODUCTION OF THIRD PARTIES.